I have been approached by many condominium corporations who are concerned about the rapidly approaching legalization of marijuana. When passed, the proposed Cannabis Act will allow adults to legally possess and consume regulated quantities of marijuana. The legalization of marijuana will pose new challenges for condominiums where individuals live in very close quarters, sometimes with shared air exchanges, walls, and structures. Understandably individuals are concerned about the smells created as a result of their neighbor smoking, and/or the potential risks of moisture, mould, increased water consumption, and fire hazards as a result of individuals growing marijuana. The good news is that most condominiums already have some tools in their chest to deal with the nuisances that the legalization of marijuana may present.
Most corporations, including all that operate under the standard bylaws included in the Condominium Property Regulations, 2001, have a general bylaw stating that “an individual cannot use his or her unit in a manner or for a purpose that will cause a nuisance or hazard to any other owner or occupant”. This provision gives general protection and the basis for a claim against an owner whose marijuana smoke, and/or hazards as a result of growing plants, infringes on another owner(s). Corporations may also have a bylaw that states an individual cannot use the unit in any way that increases the risk or fire or insurance premiums.
The problem with these provisions is that the board of directors may find themselves in a bind between the rights of two individuals, one smoking or growing and the complainant. Nuisance and risk are subjective. Therefore, the board is then faced with the difficult act of determining what truly creates a “nuisance” and what is reasonable, balancing the competing interests of two individuals. This also leaves the board open to risk if an owner claims they are not enforcing their bylaws after dismissing a complaint. In order to protect itself, the board of directors will need to be cautious and methodical to have a process in place to deal with complaints ensuring that they create a standard which is applied to all complaints.
A corporation can arm themselves with further tools to combat the potential nuisances and risks of smoking and growth of cannabis.
Change your Bylaws
With a properly passed resolution of owners (2/3 majority of all owners), the Corporation can adopt bylaws restricting the use and/or growth or cannabis. Corporations which have already banned smoking in units will have crossed the first hurdle of the potent distinct smell created by smoking marijuana. If there is not a general restriction on smoking already in your bylaws, the corporation will need to assess whether such a ban will receive enough support (2/3 majority). The next step is to determine whether the restriction will apply to units, balconies or both, and whether it will apply to marijuana, cigarettes and/or vaping.
Regardless of any restrictions the Corporation puts in place, there will likely need to be some concessions made for medicinal marijuana users. That being said those users will have to take care to use marijuana in the form it is least disruptive to other individuals while still effective for them, if restrictions are in place.
Some corporations are already gearing up for the changes. One of the benefits to acting before the legislation comes into effect is that your corporation will not be faced with grandfathering in any users or growers. We suggest you contact your lawyer to discuss your corporation’s current bylaws and options to prepare for the changes.
This article is of a general nature only. It is based upon laws and policies in effect as of the date published, which may change. It is not intended to be relied upon or taken as legal advice or opinion. You should consult with your lawyer to confirm the current state of the law and obtain advice specific to your situation.